Category: in absentia

The federal government appealed the decision to block the implementation of expanded DACA and DAPA. As you may remember, last week a District judge in Texas blocked the implementation of the President’s November 20, 2014 executive actions expanding DACA and establishing new relief for parents of US citizens and permanent residents. The ruling put a hold on USCIS’s acceptance of these applications, and stopped the expansion of the period of eligibility of these programs from 2 to 3 years.

The appeal raises several issues of law. It asks the Fifth Circuit Court of Appeals to lift the injunctions for lack of standing by the states, the limited amount of “injury” the states will suffer, and the fact that the Administration has a good chance of winning on the merits of the case. As to the standing, the Administration raised the point that federal immigration powers are “exclusive” and can not be challenged by the states. The appeal raised the point that other courts that ruled on the issue have dismissed them for lack of standing. For example, I have discussed Sheriff Arpaio’s case in an earlier post where the court ruled that he did not have standing and dismissed his suit.

The Administration also raised the point that the injury is speculative and that in fact some of the states admitted in their original submissions that they will benefit from the new programs. The Administration asked the court to limit the injunction to Texas, if it found that the latter might suffer some sort of injury, since the injunction is overbroad and stops the program even in states that will benefit from the programs.

Lastly, the most important point raised in the appeal was the fact that the federal government would be harmed by the injunctions. The theory of harm here is very simple: if States were able to block the exclusive power of the federal government over immigration, then the latter can not execute our immigration laws. The Administration highlighted the fact that it has spent millions of dollars preparing for the influx of applications. It raised the issue that if the injunction stands, it will be forced to reinitiate the same procedures, wasting precious resources in the process. The Administration also mentioned in its brief that it would be sound public policy to lift the injunctions.

I have had a hard time accepting the injunctions. At the very least, states should not be allowed to block implementation of an exclusive federal power just because they do not agree with certain policies. Assume for a second that a state did not like the immigration benefits of the Violence Against Women Act (VAWA) or decided that the recent policy allowing immigration benefits for same-sex couples harms their constituents. A state should not be allowed to stop a federal program based on some speculative harm. I also believe that this case should have been dismissed on political questions grounds, just like Arpaio’s suit.

The three mechanisms allow immigration officials or an immigration judge to hasten an immigrant’s removal. The first two, expedited removal and reinstatement of removal, allow an immigration officer to remove an applicant for admission at a port of entry or if found within 100 miles from the border. The procedures does not take into account the person’s contacts in the United States. The only possible recourse for the immigrant is to exhibit fear of returning to his country, after which he will be subjected to a credible fear interview. Oftentimes, the immigrant is not informed of his right to counsel or know that he had been deported.

Lastly, an immigrant could also stipulate to be removed from the United States. The report speaks about the coercive nature of the interrogation process, which raises serious Due Process concerns. During these interviews, immigration officers usually use coercive tactics to “convince” the immigrant to stipulate to be removed. These individuals are usually in detention, which raises serious issues regarding the voluntary nature of these stipulations.

The removal system is plagued with injustice and the odds are usually stacked against individuals who do not know the system and usually do not speak English. While some might believe that these expedited removal proceedings might be the right procedures to deport people who have no right to be in the United States in the first place, they are, in my view, illegal and a slap in the face of our judicial system. America could simply do better.

I will be discussing the second case that I discussed in my last post. This case involved a Respondent with so many identities, that the court could not find out his true identity. In Singh v. Holder, a Respondent appealed the Board of Immigration Appeals‘ order affirming the immigration judge’s decision denying his application for adjustment of status. He claimed that his due process rights were violated and that the Board erred in holding that he could not prove that he was admitted into the United States.

Singh claimed that his name in Tarsem Singh and was born on June 13, 1982, and that he entered the United States in 1995. He was also known as Simranjit Singh. He was smuggled into the United States as the daughter of a family friend. He was apprehended by ICE in 1997 and was served with for I-213. The document showed that he was born in 1978, making him 19 years old at the time. He was removed in absentia after he failed to appear for his removal hearing. His mother procured a new birth certificate for him, with a new name and a new birthday, making him 15 years old. He filed a motion to reopen the case arguing that he did not receive proper notice of the old proceeding, which was granted. He then moved to terminate the proceedings arguing that he was a minor at the time and termination was warranted under 8 C.F.R. § 236.3. The immigration judge ordered his removal reasoning that he was nineteen when served with the first Notice to Appear. He also ruled that he was not inspected by an immigration officer, since his story could not be credited. The Board upheld the immigration judge’s decision.

The First Circuit rejected Singh’s argument that his due process rights were violated since he was given enough notice to speak to his father about his arrest and because the curt could not prove his true age. The court also ruled that Singh could not show that he was inspected since he could not provide proof of such inspection. Thus, the court upheld the Board‘s decision.

I think that this case should not have been appealed. I believe that as practitioners we should be cautious of what we appeal, due to the concern that we establish bad law. I welcome your comments and feedback.

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